On the eighth anniversary of the opening of the “War on Terror” prison at Guantánamo Bay, Cuba, the implications of a ruling last week in the Court of Appeals (PDF) have added another layer of uncertainty to the prisoners’ future, in a week that was notorious for a barrage of lies and misinformation, and a promise by President Obama that he was freezing the release of all Yemeni prisoners until further notice.

The Appeals Court ruling dealt with the case of Ghaleb al-Bihani, a Yemeni who lost his habeas corpus petition, challenging the basis of his detention, in January last year, seven months after the habeas petitions resumed, following the Supreme Court’s ruling, in Boumediene v. Bush, that the prisoners had constitutionally guaranteed habeas rights.

Al-Bihani had traveled to Afghanistan to help the Taliban government fight its rivals in the Northern Alliance, in an inter-Muslim civil war that preceded the 9/11 attacks and that had, for the most part, nothing to do with al-Qaeda. However, although he had only worked as a cook for a group of Arab fighters supporting the Taliban, and was not alleged to have fired a weapon at US or coalition forces, Judge Richard Leon concluded that it was “not necessary” for the government to prove that he “actually fire[d] a weapon against the US or coalition forces in order for him to be classified as an enemy combatant.” Leon also explained, “Simply stated, faithfully serving in an al-Qaeda-affiliated fighting unit that is directly supporting the Taliban by helping prepare the meals of its entire fighting force is more than sufficient to meet this Court’s definition of ‘support,’” adding, “After all, as Napoleon was fond of pointing out, ‘An army marches on its stomach.’”

Strictly speaking, Judge Leon’s ruling was correct, because the courts were not required to ask whether it was legitimate to imprison a cook indefinitely, but merely to ascertain whether the government had established, by a preponderance of the evidence, that those who came before them had been part of, or had supported al-Qaeda and/or the Taliban.

Nevertheless, I concluded last January, and still believe now, that al-Bihani and others in a similar position, who have also lost their habeas petitions, have fallen foul of a fundamental misconception in the Bush administration’s decision to hold prisoners related to either al-Qaeda or the Taliban as a novel category of human being — “enemy combatants” — rather than as prisoners of war, protected by the Geneva Conventions, if they were soldiers (or the cooks for soldiers), or as criminal suspects, to be tried in US federal courts, if they were terrorists.

This muddle has had grave repercussions — the whole malign project of “extraordinary rendition,” torture redefined so that it could be used by US personnel, and the prisons of which Guantánamo is the most baleful icon — but eight years after its conception, the most practical demonstration of its failings rests with men like Ghaleb al-Bihani, who, by now, is almost a prisoner of war, and will certainly not be released (if ever) until the end of hostilities (whenever that may be), but who still inhabits a place reserved for those who are held neither as soldiers nor terrorists.

Eventually, once trials have been convened for those accused of criminal endeavors and war crimes, and the “enemy combatants” (whatever they are now called) have been whittled won to just a few dozen men, the Supreme Court may have to step in to address this lamentable legacy, and to insist that, in future, those detained by the United States must be either soldiers or criminals, but for now al-Bihani has had to seek redress from the Court of Appeals, and has found that none is forthcoming.

Again, this is unsurprising, because the Appeals Court is not empowered to rule on the actual detention policies inherited by the Obama administration, but although the panel of three judges who heard his appeal concluded unanimously that his continued detention was “authorized by statute” (the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks), because of his unquestionable connection with those engaged in combat against the US, they did not agree unanimously about the scope of the government’s ability to imprison him, and others like him.

In the majority opinion, Judge Janice Rogers Brown, supported by Judge Brett M. Kavanaugh (who are two of the most conservative judges on the Circuit Court) discussed the international laws of war and how they reflected on the President’s ability to hold prisoners under the AUMF, which authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States,” and which, as interpreted by the Supreme Court in Hamdi v. Rumsfeld, in 2004, involved the assertion that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF.

In a key passage, Judge Brown dismissed claims made by al-Bihani regarding his detention, not merely because his arguments, based on various interpretations of international law, failed to detract from his relationship with the fighting forces and the ongoing nature of the conflict in Afghanistan, but also because they “rel[ied] heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken.” Judge Brown also described the international laws of war as not “a fixed code,” refused to “quibble over the intricate application of vague treaty provisions and amorphous customary principles,” and concluded that “their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”

In response, Senior Circuit Judge Stephen F. Williams, the third judge, who concurred with the overall judgment and with part of the majority opinion, took exception to this conclusion, noting that the paragraph ending in “This premise is mistaken” was “hard to square with the approach that the Supreme Court took in Hamdi.” Judge Williams quoted Justice Souter, who stated explicitly, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”

This may not be much, but it was refreshing that Judge Williams at least perceived that the Supreme Court had set limits on the Executive’s wartime detention powers, and that he chastised the other judges for putting forward an argument that “goes well beyond what even the government has argued in this case” — that “[t]he authority conferred by the AUMF is informed by the laws of war.”

Despite this dissent, and the fact that the ruling will almost certainly be appealed, meaning that it will be heard en banc (by a full panel of judges), it is worrying that, as Lyle Denniston explained at SCOTUSblog, “Conceivably, the practical result may be that fewer detainees can now win court orders for their release,” and that, although “the government has not appealed to the Circuit Court all of the prior release orders, it presumably now has a free hand to contest almost any such order.”

Although the court concluded that “the facts of the case show al-Bihani was both part of and substantially supported enemy forces,” Judge Brown at least left open the possibility that “the picture may be less clear in other cases where facts may indicate only support, only membership, or neither,” adding, “We have no occasion here to explore the outer bounds of what constitutes sufficient support or indicia of membership to support the detention standard.”

Nevertheless, 2,923 days after Guantánamo opened, I find it dispiriting that everyone involved in this case and others is still essentially wasting time disputing the extent to which a man who cooked for Arab forces supporting the Taliban and never shot a gun at anyone was involved with al-Qaeda, and that judges can conclude that he can be detained indefinitely as a category of human being with less rights than a prisoner of war, when he so clearly should have been a prisoner of war all along.

Forgive me if I have lost some subtle nuances here, but to my mind we’re all missing the bigger picture, which is that the Bush administration has left us with a human quandary — the “enemy combatants” — when such a novel category of human being should no longer be casting its dark shadow on established notions of justice, and those detained should, as I mentioned above, either be held as criminal suspects or as prisoners of war.

Perhaps the Supreme Court will one day intervene to address what Judge Brown described as the “scant guidance” it provided to the lower courts when it came to dealing with “who the President can lawfully detain pursuant to statutes passed by Congress” and “what procedure is due to detainees challenging their detention in habeas corpus proceedings,” or perhaps, as she suggested in a disturbing passage in a separate opinion, Congress will act on the fact that “the Supreme Court has not foreclosed [it] from establishing new habeas standards in line with its Boumediene decision.”

For now, however, Ghaleb al-Bihani remains in Guantánamo as part of a peculiar experiment in isolation that still seems to have no end.

I have a great idea. Lets have a program that has all the Justices, the Legislators, and the President react to articles in the public record from the Founders, the Bill of Rights and the Quality of Government we have at hand right now. Let’s talk about what it’ll take to recover when we realize that we don’t have the ability to print enough money to pay for relocating whole cities, including our Capitol. See if we can get them to either admit that they understand the CLIMATE IS CHANGING or at least that we all have a right to life. I thought we had covered that in 1776 or so. So those who cause the climate on the earth to radically change must be held accountable. Those who have good ideas must be allowed a voice because the old ideas apparently result in boat loads of dead people. If not by sea, we bomb from the air. But what we should be doing is start by assuming equality, equity, and democracy and come up with an idea of what kind of government can handle what the environment is about to hand us. Let’s say southern California goes DEEP DROUGHT. How do we feed/house/care for all them millions of voters? It might come up in, say, a couple of decades. Talk among yourselves.

[…] George W. Bush — not only defended al-Bihani’s detention under the terms of the AUMF, but also dismissed arguments made by al-Bihani that “rel[ied] heavily on the premise that the war powers granted by the AUMF […]

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